Understanding A Criminal Defense Attorney

The Process of Criminal Justice

Criminal justice is a process, involving a series of steps beginning with a criminal investigation and ending with the release of a convicted offender from correctional supervision. Rules and decision making are at the center of this process.

Rules

Sources of rules in criminal justice include the U.S. Constitution and Bill of Rights, state constitutions, the U.S. Code, state codes, court decisions, federal rules of criminal procedure, state rules of criminal procedure, and department and agency rules and regulations. The Federal Rules of Criminal Procedure, for example, govern the procedure in all criminal proceedings in courts of the United States.

Discretion

Decision making in criminal justice involves more than the learning of rules and the application of them to specific cases. Decisions are based on discretion, that is, the individual exercise of judgment to make choices about alternative courses of action. Discretion, or making decisions without formal rules, is common in criminal justice. Discretion comes into play whenever police make choices about whether to arrest, investigate, search, question, or use force. Similarly, prosecutors exercise individual judgment in deciding whether to charge a person with a crime and whether to plea‐bargain. Judges also use discretion when setting bail, accepting or rejecting plea bargains, ruling on pretrial motions, and sentencing. Parole board members exercise discretion when deciding whether and when to release inmates from prison.

An Overview of the Criminal Defense Process

Investigation

Before you can be arrested and charged with a crime, law enforcement officers must have “probable cause” to arrest you. Investigators from the Harris County Sheriff’s office, local Houston police department or another state or local law enforcement agency may employ various procedures – such as a search warrant, interrogation, seizure of property, etc. – to justify a criminal charge. This is the first step in the criminal justice process.

Many people make the mistake of waiting to contact an attorney after being arrested. However, getting a lawyer involved early in the process during the investigation stage can significantly impact your case in a positive way later on.

Arrest

Once police feel they have probable cause, they will arrest you. Upon being arrested, you will be booked at a local police station or jail. During this process, police will take your fingerprints and photograph as well as record the charges filed against you. You may also be searched and questioned.

Remember, you are under no legal obligation to talk to investigators and are strongly encouraged not to speak with police until your attorney is present. Your constitutional Miranda Rights mean “you have the right to remain silent.”

Arraignment & Bail (Initial Appearance)

The arraignment is your first appearance in court and when formal charges are filed against you. During this brief hearing, which must occur as quickly as possible after arrest, you will appear before a judge with your attorney (if you choose to hire one). The judge will confirm that you are the person being charged with the crime, that you know what crime you are being charged with, and what you plead to the charge – guilty, not guilty or no contest.

Almost all defendants plead not guilty at the arraignment. This gives their attorney more time to prepare their case, even if they plan on pleading guilty later on. If a defendant pleads guilty during the arraignment, they skip straight to sentencing.

The arraignment is also when bail and your next court appearance is set. Bail allows you the freedom to go home during the trial proceedings and the bail amount (an amount of money the court uses to ensure the defendant returns on his or her trial date) is set by the judge.

Pretrial Hearings & Plea Bargaining (Grand Jury Proceedings)

The next step in the criminal defense process is the beginning of pre-trial conferences and hearings, or a Grand Jury proceeding in the case of federal crimes. During these meetings between the prosecution and defense, both parties discuss strengths and weaknesses in the prosecution’s case, pretrial motions as well as indirect factors that pertain to the defendant’s case such as their character, history and reasoning behind committing the crime (if they are guilty).

These factors, and other discussions that often occur during pretrial hearings, can greatly impact a defendant’s plea bargaining leverage.

During the pretrial process is also when the defense lawyer may work out a deal with the prosecutor and police to prevent a trial by getting them to drop the case or having their client plead guilty to a less serious charge. A majority of federal and state criminal cases (90-95 percent) end during the pretrial process due to plea bargaining.

Trial

If the defendant pleads “not guilty” and a plea agreement cannot be reached, the case moves onto the trial phase of the criminal defense process. During the trial, a judge or jury reviews the case to determine whether they think the defendant is guilty or innocent. The trial phase can last anywhere from two months to two years depending on the complexity of the criminal case.

Verdict

Following the trial proceedings, the judge or jury comes together in private to decide whether or not they believe the defendant to be guilty “beyond all reasonable doubt.” The deliberation stage may last for minutes or weeks, and the final verdict is read to the defendant in court once a decision has been reached.

The jury’s decision must unanimous. If a unanimous verdict cannot be reached (known as a “hung jury”), then a mistrial is declared and the prosecution is free to retry the case if they wish to. If the verdict is not guilty, neither the prosecutors nor the court can overturn the jury’s decision and the defendant is cleared of all charges. If the verdict is guilty, the defendant moves onto the next step.

Sentencing

If you have pleaded guilty, or been tried and convicted by a judge or jury, then you must receive sentencing for the crime you are charged with. Determining the length and severity of the punishment to fit the crime is a complex process for a judge that involves looking at a defendant’s criminal record, responsibilities, level of remorse and other factors. All judges, however, are typically bound by standard sentencing guidelines set forth by the state or federal government.

Appeal

If you are found guilty of all or some of the criminal charges, you are entitled to appeal the verdict up to at least one level of appellate court. The Texas Court of Appeals is the mid-level court system that looks for instances of improper procedural issues that have taken place in the initial trial and this court has the power to overturn a lower court’s decision.

The highest court in Texas for criminal cases is the Texas Court of Criminal Appeals, and they take appeal cases from the mid-level court system or direct appeals where the death penalty is a possibility.

Laying the groundwork: the importance of gathering all the facts

A superior criminal defense is built upon a comprehensive understanding of the case and the defendant. A defense attorney gathers information through several means, including:

  • Open and collaborative communication with his or her client to obtain a thorough personal and criminal history and to ascertain the client’s mental capacity/state of mind, timeline of the crime, and relationship with the victim. Thanks to attorney-client privilege, anything shared with one’s defense attorney is completely confidential.
  • A process known as “discovery” that promotes fairness in trials, whereby the defense receives all the evidence that the prosecution has, including the charging document, police reports, lab tests, and witness statements. Defense attorneys scrutinize these documents with great care to assess the state’s evidence and look for holes that may help the defense or point to wrongdoing on the part of law enforcement while gathering evidence (e.g., illegal search and seizure, etc.).
  • Independent investigation to gather new evidence and verify the facts of the case. Good defense attorneys will not simply take the prosecutor’s version of events at face value, but instead will conduct their own research, including but not limited to: interviewing witnesses to determine their credibility; visiting the scene of the crime; and exploring any inconsistencies in the state’s evidence.

Can A Defense Attorney Refuse A Case Because He Knows The Defendant Is Guilty?

Lawyers who are in private practice Have more freedom as a practical matter to decline representation for nay reason, including the defendant’s guilt. How does that work in the real world. If the lawyer practices exclusively ro msotly criminal law, the lawyer will be faced with the same brute fact that publci defenders face: Most of the clients are guilty. If criminal law is a big chunk of your practice and you limit it to denfdign innocent clients only, then you will very soon have no clients. As a practical matter lawyers practicing criminal law in private practice can not afford to limit their practice to only innocent clients.

When I was practicing, I would not represent clietn sin criminal defense matters because I didn’t know what I was doing. I had a particular skill where I did handle a fair amount of environmental crimes, which is a sub specialty that I happened to possess., I almost always retained co-counsel whose practice was 100% criminal defense, usually a former prosecutor or public defender.

Short(er) answer: Can a medical doctor specializing in kidney disease refuse to treat patients with kidney disease? Sure, but why? If you don’t want to represent criminals, don’t practice criminal law.

Defense Attorney Required Skills

  • Excellent written and verbal communication skills.
  • Strong research and public speaking skills.
  • Excellent decision-making and problem-solving skills.
  • Ability to work autonomously or with a team of attorneys to develop case strategies.
  • Adaptable, with a strong attention to detail.